Immigration law and tax law, although at first glance strikingly different, share much in common. Each rivals the other in complexity. Each permeates every nook and cranny of human behavior — from commerce and criminality to love and divorce, from mental illness to extraordinary brilliance, from birth to death and everything in between. Though each is a distinct legal discipline, they are but variant species within the general fields of administrative law, litigation and appellate law, public and private international law, family law, estates and trusts, criminal law, and of course constitutional law. The sting of taxes — forever coupled with death as life’s two unavoidable realities — likewise is yoked to our all-pervasive immigration laws in ways both subtle and obvious.

Yet Americans are outraged when tax laws and revenue agents bite them, but seem scantly or not at all troubled when our immigration laws and their bureaucratic enforcers devour people and property rights. No doubt this disparity of concern proves the maxim that it all depends on whether your own or your neighbor’s ox is gored.

Thus, amnesty generates nary a peep if granted to tax cheats, but stands as an outrageous transgression against the rule of law if leniency and pragmatism are offered to aspiring Americans who lack legal status. So too with the terabytes of digital ink spilled over the recent revelation that IRS agents in Cincinnati probed more searchingly applicants for non-profit designation of the Tea Party persuasion than supplicants on the left.

A scandal to be sure, but why is the public not similarly incensed when immigration agents cross the line and behave not as neutral technocrats but as political actors?

Consider the recent action of the federal union representing the officers of U.S. Citizenship and Immigration Services (USCIS) who announced in a press release that it had signed on to a letter issued by another government union, the National Immigration and Customs Enforcement Council, which represents officers of a different immigration component of the Department of Homeland Security (DHS), U.S. Customs & Immigration Enforcement (ICE).

As TheNew York Times observed in a recent editorial, “Leaders of [the ICE and USCIS] unions have joined antireform hard-liners in trying to kill the [comprehensive immigration reform (CIR) bill that just passed the Senate Judiciary Committee], showing an unbending hostility to its goals.” The unions, sounding like health care workers forced to engage in practices that violate their collective conscience, and a bit like erstwhile presidential candidate, Rudy Giuliani, offer a scurrilous letter that resurrects all too familiar bogeymen as punching bags: “illegal aliens,” “gangs,” and “9/11.” Sadly, however, as The Times observes, “[what] any of these false charges has to do with the work of immigration agents — which is to enforce the immigration laws as written — is beyond us.” Indeed, there is a “certain piquancy” when “conservative” Republicans opposing CIR scurry to become bedfellows with federal labor unions, clearly miffed at not being consulted by the Gang of Eight.

Where is the popular outrage over the scandalous behavior of immigration officers that is just as abhorrent as the misadventures of errant IRS officials? The actions of the IRS involved comparatively few agents in an understaffed local office, whereas the union leaders’ letter is offered as the shared belief of 7,000 ICE agents and 12,000 USCIS employees.

The unions raise hobgoblins over the discretion that the Senate bill, S. 744, would give to “political appointees” who allegedly prevent these oath-bound officers from administering the strictest letter of the law. Yet they fail to recognize that the absence of discretion in enforcement created the pickle we are in. A nation that will not tolerate and cannot pay for the mass deportation of 11 million people must grant our only nationally elected leader, the President, and his chosen team, the power to be strict with those who threaten our safety and lenient with those who do us no material harm.

Congress should recognize its mistake when, in passing the Homeland Security Act, it moved USCIS, the immigration benefits agency, from the Justice Department, where that function had historically resided, and co-mingled it irreconcilably with immigration enforcement at DHS. CIR should put USCIS back into DOJ. The legislation should also abolish USCIS’s Fraud Detection and National Security Directorate, and reaffirm that the immigration enforcers’ power to nab fraudsters, terrorists and other lawbreakers is a shared but exclusive function of the interior and border immigration police, respectively, ICE and U.S. Customs and Border Enforcement. Congress must also recognize its failure of immigration oversight that allowed the types of immigration scandals reflected by the unions’ power grab to occur.

In the final analysis, taxation and immigration — and their associated scandals — illustrate the same problem. It arises when career bureaucrats are allowed to trample the rule of law in fits of partisan excess, and elected leaders, failing in timely oversight, are outraged only when the spotlight of media attention leads to enough public discontent that tenure in office and the prospects for reelection are threatened.

While I agree there are similarities between immigration and tax law, especially as it pertains to complexity and their impact on people and commerce, I find your reference to the IRS scandal in Cincinnati as analogous to USCIS’ creation of the Fraud Detection and National Security Directorate (FDNS) preposterous. What is scandalous is your ongoing effort to have FDNS abolished under the guise that because its functions are enforcement-oriented, they should be performed by Immigration and Customs Enforcement (ICE). I say this because you know as well as anyone that FDNS does not conduct illegal “probes “ of innocent people, groups, organizations, or other entities; nor does it conduct criminal investigations. FDNS conducts random and other compliance reviews and benefit fraud assessments to acquire the information needed to develop and maintain the internal guidance, systems, and other tools needed to effectively detect, deter, and combat fraud in the application and petition process. While FDNS also conducts administrative (underscoring supplied for emphasis) inquiries into suspected application and petition fraud, these inquiries are lead-driven; meaning triggered by the presence of known fraud indicators. These administrative inquiries are aimed at verifying information critical to an accurate adjudicative finding of eligibility for the benefit sought, whereas the objective of an ICE criminal investigation, upon finding fraud, is to pursue an indictment, prosecution, and conviction. Further, and as you also know, USCIS (FDNS) forwards cases meeting pre-established criteria to ICE for criminal investigation. To disregard lower level one- and two-party fraud simply because they do not meet referral criteria for criminal investigation would further weaken the integrity of the legal immigration system.

The underlying issue here is not unlike those present in the ongoing effort to reform this country’s immigration laws and system. There are some who prefer greater, but less controlled immigration; those who prefer less or perhaps more moderate immigration, but greater control, and those who recognize the need for balance. As a former DOJ and DHS careerist with nearly 36 years of experience administering and enforcing immigration law and operations, I am one who believes in legal immigration. To have a system with integrity, however, both legal and illegal immigration must be controlled. I am not opposed to amnesty, nor many of the other benefit-based proposals contained in S.744, however, I do not believe it, as proposed, will reform our broken system. At the end of the day, we must be able to examine this legislation and find it will not lead to a repeat of the widespread illegal immigration that led to the passage of the Immigration Reform and Control Act of 1986. While S.744 makes considerable improvements, it will not remove the most significant impediments that prevent us from controlling illegal immigration, that being combating fraud in the legal immigration system and enforcing the law in the interior U.S.

About Angelo

The grandson of Italian immigrants, Angelo is recognized by his peers and the public as a scholar and leader in immigration law and a passionate advocate for the rights of immigrants, U.S. citizens, and organizations petitioning for immigration benefits.

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About Angelo

The grandson of Italian immigrants, Angelo is recognized by his peers and the public as a scholar and leader in immigration law and a passionate advocate for the rights of immigrants, U.S. citizens, and organizations petitioning for immigration benefits.